Repressive measures in Jammu & Kashmir: Is the government overstepping its constitutional mandate?

Curtailment of access to internet services has become an unfortunate yet prevalent phenomenon in India. The imposition of a month-long ban on social media by the Jammu & Kashmir government is one such latest incident. While severance of the public from social media, in order to prevent the flaring up of communal or caste-based tensions, is not unprecedented, these bans were often transitory, lasting for a day or two.

Extent of governmental control over speech

In the matter of Jammu & Kashmir, Section 5 the Indian Telegraph Act, 1885 was used to block websites like Facebook, Twitter, WhatsApp, and 19 others for one month on the grounds that these social networks were being used to circulate anti-national and anti-social information. The question which begs an answer is, whether such a blanket ban is within the powers of the state government and whether there are any safeguards against it?

Section 5 of the Telegraph Act gives powers to the Central and State governments to block and intercept the transmission of messages. However, to understand this provision, it is important to examine the historical background behind the introduction of this Act.

Colonial laws have outlived their utility

The Telegraph Act was introduced in 1885, inter alia, to control the transmission of information which was against the interests of the British government and thus to stifle the spread of the ideas of independence across India. These developments were meant to suppress 1857 sepoy mutiny and the unified national spirit that was mushrooming across India in the 1880s. India has shown an unusual affinity to the laws of a by-gone era. Even after the end of the colonial era, the speech of the Indian citizens in the 21st century is governed by the laws of the 19th century.

Is Information Technology Act a better alternative?

Another issue worthy of examination in the light of this order is the standing of the Information Technology Act, 2000 and more specifically, Section 69A of the Act. The IT Act is a special Act which provides for blocking of websites under 69A by the Central Government, provided these sites serve as a threat to national security. Being a special Act, it has primacy over older laws such as The Telegraph Act and is applicable to the whole of India.

An order under Section 69A of the IT Act is passed only after a lengthy analysis and review process, whereby applications have to be made to Joint Secretaries of Ministries such as Home, Law, and Information and Broadcasting. However, there is no such process required for passing an order under Section 5 of the Telegraph Act. The Supreme court has previously emphasised the need for creation of safeguards against the misuse of powers of interception and blocking messages. While safeguards against interception of messages were created in 2009, there have been no such safeguards created against blocking messages.

The ban is a mockery of the Constitution

The state government’s order is a blatant infringement of the constitutional right to Freedom of Speech & Expression under Article 19 (1) (a). Admittedly, this right is not absolute, however, it can be restricted only on the basis of the grounds mentioned in Article 19(2) of the Constitution. The impugned order which imposed the blanket ban did not rest on any of the “reasonable” grounds mentioned under Article 19(2).

Due to the grant of such unbridled powers to the Executive and the infringement of fundamental rights, the very constitutionality of Section 5 of the Telegraph Act must be called into question.

Is it time to undo colonialism forever?

While no judicial inquiry has been initiated with regards to this matter, it is fair to state that this incident has set the alarm bells ringing. Apart from this incident in Jammu & Kashmir, there was a 20-day long blockage of the internet and messaging services earlier this year in Nagaland. These incidents indicate a shocking trend of misuse of the governmental machinery to muzzle public opinion with impunity. Being the citizens of the largest democracy in the world, Indians cannot be and must not be complicit in the face of such measures.

Challenging the validity of such repressive laws judicially, and creating popular opinion against these laws socially, appear to be the most feasible counter-attack against the measures that seek to take away individual liberty. Such efforts will ensure a free and a truly democratic Indian society for the years to come.